United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1910

___________________________

Robert Paul Dols

lllllllllllllllllllllPlaintiff - Appellant

v.

Andrew Saul, Commissioner, Social Security Administration 1

lllllllllllllllllllllDefendant - Appellee

____________

Appeal from United States District Court 

for the District of Minnesota - Minneapolis

____________

Submitted: April 19, 2019

Filed: July 26, 2019

____________

Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.

____________

GRUENDER, Circuit Judge.

The Social Security Commissioner denied Robert Dols’s application for

supplemental security income. After the Commissioner issued a final decision, Dols

Andrew Saul became the Commissioner of Social Security on June 17, 2019 1

and has been automatically substituted as a party pursuant to Federal Rule of

Appellate Procedure 43(c)(2).
filed a complaint in the district court, which granted the Commissioner’s motion for

2

summary judgment. We affirm.

Dols applied for supplemental security income in September 2013. After the

claim was initially denied and denied again upon reconsideration, an administrative

law judge (“ALJ”) held a hearing. Dols; Dr. Michael Lace, a psychological expert;

Nancy Kaley, Dols’s counselor; and a vocational expert testified at the hearing. The

ALJ issued a decision on September 2, 2015 using the five-step process outlined by

20 C.F.R. § 416.920(a) for evaluating disability. At step two, the ALJ determined

that Dols “has the following severe impairments: anxiety, depression, Asperger’s

disorder, cerebral dysfunction, obsessive compulsive disorder and [a] history of

substance abuse/dependence.” At step three, the ALJ concluded that Dols’s

impairments did not meet or medically equal “the severity of one of the listed

impairments.” The ALJ denied Dols benefits, giving great weight to Dr. Lace’s

opinion and no weight to Kaley’s opinion. The Appeals Council denied Dols’s

requestfor review, and the ALJ’s decision became the Commissioner’s final decision. 

In granting summary judgment, the district court determined that substantial

evidence supported both the ALJ’s conclusion that Dols did not meet or equal a listed

impairment and the ALJ’s decision to give great weight to Dr. Lace’s opinion. On

appeal, Dols argues that his severe impairments meet listings 12.02, 12.04, 12.06, and

12.10. See 20 C.F.R. pt. 404, sbpt. P, app. 1 (2013). He also argues that the ALJ

improperly “accorded great weight” to Dr. Lace’s opinion and that Kaley’s opinion

should have been given more weight than Dr. Lace’s. 

The Honorable TonyN. Leung, Magistrate Judge, United States DistrictCourt

2

for the District of Minnesota, to whom the case was referred by consent of the parties

pursuant to 28 U.S.C. § 636(c).

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“We review the district court’s determination de novo, affirming the ALJ’s

decision if it is supported by substantial evidence on the record as a whole.” Scott v.

Berryhill, 855 F.3d 853, 856 (8th Cir. 2017) (internal quotation marks omitted). We

must consider “the evidence thatsupportsthe Commissioner’s decision as well asthe

evidence that detracts from it. That we would have come to a different conclusion,

however, is not a sufficient basis for reversal.” Finch v. Astrue, 547 F.3d 933, 935

(8th Cir. 2008) (citation omitted). “If, after reviewing the record, the court finds it

is possible to draw two inconsistent positions from the evidence and one of those

positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.” 

Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005). “In conducting our limited and

deferential review of the final agency determination under the substantial-evidence

standard, we must view the record in the light most favorable to that determination.”

Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir. 2018) (per curiam).

At step two of the five-step process, the ALJ considers “the medical severity

of [the claimant’s] impairment(s).” 20 C.F.R. § 416.920(a)(4)(ii). At step three, “[i]f

the impairment meets or equals one of the listed impairments [in 20 C.F.R. pt. 404,

subpt. P, app. 1], the claimant is conclusively presumed to be disabled.” Bowen v.

Yuckert, 482 U.S. 137, 141 (1987). “To meet a listing, a claimant must show that he

or she meets all of the criteria for the listed impairment.” Blackburn v. Colvin, 761

F.3d 853, 858 (8th Cir. 2014). 

At the time of the ALJ’s decision, listings 12.02, 12.04, and 12.06 required that

a claimant meet the paragraph A and B criteria or the paragraph A and C criteria. 20

C.F.R. pt. 404, sbpt. P, app. 1, § 12.00 (2013). Listing 12.10 required that a claimant

meet both the paragraph A and paragraph B criteria. Id. § 12.10. We assume, without

deciding, that the paragraph A criteria have been satisfied for all the listings at issue. 

Thus, Dols may meet one of the listings by satisfying the paragraph B or the

paragraph C criteria. We consider paragraph B first.

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All four listings have the same paragraph B, which is satisfied when the

claimant proves two of four criteria. See Id. §§ 12.02(B), 12.04(B), 12.06(B),

12.10(B) (2013). The ALJ determined that Dols did not prove any of the four. 

Because Dols appeals the ALJ’s determination as to only the first two criteria, Dols

must succeed on both arguments. Thus, Dols must first show that substantial

evidence does not support the ALJ’s determination that Dols failed to prove the first

criteria because he has a moderate rather than a marked restriction on his activities

of daily living (“ADLs”). Id. 

ADLs “include adaptive activities such as cleaning, shopping, cooking, taking

public transportation, paying bills, maintaining a residence, caring appropriately for

. . . grooming and hygiene, using telephones and directories, and using a post office.”

Id. § 12.00(C)(1) (2013). The Code of Federal Regulations requires an assessment

of “the quality of these activities by their independence, appropriateness,

effectiveness and sustainability” and a determination of “the extent to which [the

claimant is] capable of initiating and participating in activities independent of

supervision or direction.” Id. 

In support of its determination, the ALJ noted that the testifying psychological

expert, Dr. Lace, “opined moderate limits.” It also noted that Dols “indicated in his

November 2013 function report that he had no problems performing personal cares

such as bathing or dressing himself”; that “[h]e performs yard work around the sober

house he resides at”; “prepares meals and cleans his house”; rakes and mows the

lawn; washes laundry; “shops for groceries and some personal items”; that he “can

count change, pay bills, use a checkbook or money orders and a savings account”;

and that he was working part-time. 

Dols argues that the ALJ should not have relied on Dols’s statements in his

function report because accepting the “statements at face value in the paragraph B

analysis was at odds with the ALJ’s own credibility determination.” During the

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ALJ’s step three analysis, it was required to determine Dols’s residual functional

capacity (“RFC”). 20 C.F.R. § 416.920(e). In doing so, the ALJ must assess the

claimant’s “ability to meet the physical, mental, sensory, and other requirements of

work.” Id. § 416.945(a)(4). The ALJ noted that Dols’s and Kaley’s statements

“concerning the intensity, persistence and limiting effects of [Dols’s] symptoms

[were] not credible to the extent they [were] not consistent with the objective medical

evidence and other evidence.” Dols claims that the ALJ cannot “have it both ways.” 

He argues that the ALJ could not base its paragraph B findings on Dols’s statements

while simultaneously finding his statements not credible for the RFC assessment. 

But the RFC assessment requires consideration of “all of the relevant medical

and other evidence.” Id. § 416.945(a)(3). In contrast, the ALJ looked to the function

report for an account of Dols’s daily life. The ALJ found Dols’s statements not

credible for the RFC assessment only to the extent that they conflicted with medical

evidence and other evidence. It was reasonable for the ALJ to conclude that Dols

could reliably describe his daily life but that Dols’s opinion about “physical and

mental limitations” that would affect what work he could do in a work setting was not

credible. Id. § 416.945(a)(1). 

In addition, Dols argues that the ALJ’s finding is not supported by substantial

evidence because Kaley’s testimony demonstrates that he “has serious difficulties in

performing his ADLs without the significant supervision and oversight of the Five

Stars residential facility where he lives.” Kaley testified before the ALJ that Dols

could drive and grocery shop but that he “would need help with his money.” She

explained that staff at the residential facility review his grocery list every two weeks

and make sure that he does not run out of his medications. Dols also pointsto the fact

that the staff at the residential facility meet with him three times a week. 

While Dols has some help with managing money and grocery shopping, he also

appears to have done those tasks on his own at times. Further, Dols testified that he

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cleans dishes and bathrooms, sweeps and vacuums the house, and reads the

newspaper and magazines. A licensed psychologist who examined Dols noted that

he arrived early for their meeting and that he had “arranged a ride.” She also

observed that he was “casually dressed and adequately groomed.” At the time of the

hearing before the ALJ, Dols had recently worked as a janitor. And Kaley testified

that Dols had biked to a movie. 

Given that Dols bears the burden of proving a disability at step three, we

conclude that substantial evidence supports the ALJ’s determination that Dols has

only a moderate restriction on his ADLs. See Blackburn, 761 F.3d at 858 (explaining

that the claimant “bears the burden of establishing that he meets all the criteria”). “It

is not the role of this court to reweigh the evidence presented to the ALJ or to try the

issue in this case de novo.” Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Thus,

substantial evidence supports the ALJ’s decision that Dols does not meet the

paragraph B requirements, and he therefore does not meet listing 12.10, which

requires claimants to satisfy both the paragraph A and the paragraph B criteria, or

listings 12.02, 12.04, or 12.06 on the basis of paragraph B. 20 C.F.R. pt. 404, sbpt.

P, app. 1, §§ 12.02, 12.04, 12.06, 12.10 (2013).

While Dols has not shown that he meets paragraph B, he may still meet listings

12.02 and 12.04 if he shows that he meets paragraph C. Id. § 12.00 (2013). He 3

argues that he satisfies paragraph C’s third criterion, which requires him to show that

a “chronic organic mental disorder” (§ 12.02) or a “chronic affective disorder”

(§ 12.04) caused a “[c]urrent history of 1 or more years’ inability to function outside

a highly supportive living arrangement, with an indication of continued need for such

an arrangement.” Id. §§ 12.02(C), 12.04(C) (2013). “The regulations define highly

While Dols argues on appeal that he satisfies the 12.02 and 12.04 paragraph

3

C requirements, he concedesthat he does not meet listing 12.06’s different paragraph

C criteria. 

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supportive settings to include hospitals, halfway houses, care facilities, and personal

home settings that greatly reduce the mental demands placed on [the claimant].” 

Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013) (alteration in original and internal

quotation marks omitted).

The ALJ concluded that Dols failed to meet the paragraph C criteria. It

acknowledged that Dols “currently resides in sober housing” and that he had

previously “resided with his parents.” But the ALJ pointed out that the record “shows

that [Dols] was the primary caretaker for his mother after his father passed away.” 

It determined that the “record does not support a finding that [Dols] isrequired to live

in residential housing due to his mental impairments when not using mood-altering

substances.” 

At the hearing, Kaley testified that Dols had been living at Five Stars for three

years. Dols argues that he has met the paragraph C criteria because the support he

receives at Five Stars “includes group and individual therapy sessions, facilitated

attendance at Alcoholics Anonymous meetings, oversight of [his] budget,

medications, and grocery delivery order, and general oversight of [his] daily affairs.” 

The district court concluded that the evidence indicates Dols may need a

supportive living arrangement, but it emphasized that paragraph C requires Dols to

demonstrate his need for a highly supportive living arrangement. We agree with the

district court that substantial evidence supported the ALJ’s conclusion that Dols has

not made such a showing here. Though one psychologist stated that Dols “could be

considered for future placement in a semi-independent or shared-living facility with

on-site supports,” his recommendation did not indicate that Dols needs a highly

supportive living arrangement. Indeed, as outlined above, Dols has worked part-time,

completes a number of chores around Five Stars, prepares food for himself, and

sometimes shops for his own groceries. The record also indicates that Dols lived on

his own after moving out of his parents’ home before he began living at Five Stars. 

-7-
Further, Dols began living at Five Stars to participate in a relapse recovery

program for his drug and alcohol addictions. He has maintained his sobriety since

2012. Five Stars was not intended to have permanent residents, but Five Stars

allowed Dols to stay because he did not “have anywhere else to go and he can’t

work.” But paragraph C requires that a chronic organic mental disorder or a chronic

affective disorder caused the “inability to function outside a highly supportive living

arrangement.” 20 C.F.R. pt. 404, sbpt. P, app. 1, §§ 12.02(C), 12.04(C) (2013). 

Dols’s alcohol and drug addictions caused his initial residence at Five Stars. And

while Dols attends three meetings a week at Five Stars, the meetings are for his

alcohol addiction, not for mental health treatment. Kaley testified that nobody at Five

Stars is trained “to deal with populations that have the problems that [Dols] has.”

Even were we to assume that Five Stars is a highly supportive living environment,

substantial evidence supports a conclusion that Dols has not shown that a chronic

organic mental disorder or a chronic affective disorder caused his alleged need to stay

at Five Stars. Thus, substantial evidence supports the ALJ’s determination that Dols

does not satisfy the paragraph C criteria.

Finally, Dols contests the weight the ALJ gave to Kaley’s and Dr. Lace’s

opinions. He argues that it was unreasonable for the ALJ to give no weight to

Kaley’s opinion, that Dr. Lace’s opinion should not have been given “great weight,”

and that Kaley’s opinion should outweigh Dr. Lace’s given her greater familiarity and

relationship with Dols. As an initial matter, it is not clear that Dols challenged the

ALJ’s decision to give no weight to Kaley’s opinion in the district court. See Nasser

v. Astrue, 248 F. App’x 766, 768 (8th Cir. 2007) (per curiam) (declining to consider

argumentsraised for the first time on appeal). But even if we assume that Dols raised

this argument, substantial evidence supports the ALJ’s decision. 

According to the Social Security Administration (“SSA”) regulations, Kaley

is a non-medical, “other” source. See 20 C.F.R. § 416.913(d) (2013); Sloan v. Astrue,

499 F.3d 883, 888 (8th Cir. 2007) (explaining that non-medical, “other sources”

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include rehabilitation counselors). The regulations classifyDr. Lace, a psychological

expert, as a medical source. The SSA provides similar factors for weighing both

Kaley’s and Dr. Lace’s opinions, including the examining and treatment relationships,

the length of the treatment, the nature and extent of the relationship, supportability,

consistencywith the record, specialization, and other factors thatsupport orrefute the

opinion. See SSR 06-3p, 2006 WL 2329939, at *5 (Aug. 9, 2006) (explaining the

factors for non-medical, other sources); 20 C.F.R. § 416.927(c) (2013) (explaining

the factors for medical sources). 

Kaley began counseling Dols in March 2012 and testified about Dols’s life at

Five Stars. She explained that Dols has Asperger’s, that he “appears angry” when

relating to others, does not make eye contact, “grunts when he gets tense,” and “at

times” gets Tourette’s. She was “afraid” that his symptoms “would happen at a job

site.” It is not surprising that there is some evidence in a lengthy administrative

record “which detracts from the Commissioner’s determination” about what weight

to give Kaley’s opinion. See Fentress v. Berryhill, 854 F.3d 1016, 1021 (8th Cir.

2017). For example, Kaley knew and counseled Dols for a number of years, and

others who interacted with Dols supported her observation that Dols has trouble

communicating.

But we consider only whether the ALJ’s decision is supported by substantial

evidence, not whether we would have made the same decision. See Travis v. Astrue,

477 F.3d 1037, 1042 (8th Cir. 2007). And some of Kaley’s testimony is contradicted

or not supported by the record. While Kaley said Dols “got Tourette’s,” Dols does

not cite anything in the record indicating that he was diagnosed with such a condition. 

Further, while Kaley testified that Dols could not hold a job, he had recently worked

as a janitor with no performance problems. In general, Kaley presented little to no

evidence other than her personal observations. Instead, she based her opinion about

Dols’s ability to work on her observations as a licensed alcohol and drug counselor,

not as an expert with experience in making disability determinations. “[W]e must

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view the record in the light most favorable to [the ALJ’s] determination.”

Chismarich, 888 F.3d at 980.

By contrast, Dr. Lace testified as an expert in mental health, was familiar with

the disability review process, and reviewed all of the evidence in the case. He

testified that Dols’s mental health problems did not meet or equal any of the listings.

He said that certain work restrictions, like “no public contact at all,” should apply to

Dols. He explained that Dols should be “limited to very simple,” routine, repetitive

tasks and that he was best suited to low-stress work that does not include high-speed

production tasks.

A review of the record as a whole supports Dr. Lace’s testimony. After a

phone interview with Dols in October 2013, an SSA employee indicated that Dols

had no difficultywith understanding, coherency, concentrating, talking, or answering

questions. Though one psychologist observed “poor communication skills, [a] lack

of social relationships, poor eye contact, and [a] vocal tic” in February 2014, a

different psychologist noted that Dols was “relaxed, casual, cooperative, [and]

appropriate,” and that Dols was “not depressed” and “not anxious” after four

meetings from July 2014 to April 2015. The psychologist additionally observed that

Dols’s speech was coherent with a normal rate and tone and that Dols’s judgment and

insight were intact. The psychologist made the same observationsfollowing July and

October 2015 meetings with Dols. 

This evidence supports Dr. Lace’s opinion and contradicts Kaley’s opinion. 

See SSR 06-3p, 2006 WL 2329939, at *6 (explaining that evidence from a nonmedical, other source could outweigh evidence from a medicalsource when the nonmedical source “has seen the individual more often and has greater knowledge of the

individual’s functioning over time” and if the opinion “has better supporting

evidence and is more consistent with the evidence as a whole” (emphasis added)). 

To the extent that the Vineland II test measuring adaptive skills and other evidence

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in the record conflicts with Dr. Lace’s opinion, we agree with the district court that

the ALJ’s decision was within the “zone of choice.” See Travis v. Astrue, 477 F.3d

4

at 1042. 

In sum, while the ALJ could have weighed the evidence differently, substantial

evidence supports the ALJ’s determination that Dr. Lace’s review of all the evidence

should be credited over Kaley’s observations as a non-medical, other source. “It is

the function of the ALJ to weigh conflicting evidence.” Kirby v. Astrue, 500 F.3d

705, 709 (8th Cir. 2007). We “will not reverse merely because evidence also points

to an alternate outcome.” Travis, 477 F.3d at 1042. 

For the foregoing reasons, we affirm.

ERICKSON, Circuit Judge, dissenting.

The parent of a disabled child who goes to any length to support and assist the

child in ways that allow the child to be as fully integrated in society as possible

rejoices in the child’s success. That same parent worries about what will happen to

the child after he or she is gone, fearful that the system will fail the child and leave

him or her mostly defenseless in a world that little recognizes mental illness and the

hurdles it lays before those who suffer. This case is a case in which those parental

fears have been realized. And I respectfully dissent. 

Dols further argues that the ALJ should not have given Dr. Lace’s opinion

4

great weight because Dr. Lace testified that his opinion was based on the record and

that he did not consider Kaley’s testimony. Dols claims that the SSA’s Hearings,

Appeals, and Litigation Law Manual (“HALLEX”) required Dr. Lace to have

considered Kaley’s testimony. Even if HALLEX did impose such a requirement, it

“is not a regulation. It has no legal force, and it does not bind the SSA.” See

Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (per curiam).
Robert Dols faces many significant mental health challenges. He is 62 years

old and suffers from, among other things, depression, anxiety, alcohol dependence,

and autism-spectrum disorder. His intellectual functioning falls in the low-average

range, but his memory is not as good as one would expect of a person with his IQ. 

As a result of his mental health issues, Robert struggles to interact appropriately with

others. He is easily frustrated and engages in conduct that is generally considered by

others to be unusual and avoidant. He lacks sufficient insight to see most, if any, of

these limitations in himself. The record reflects that, while in conversation with

others, Robert scowls, grunts, squeals, avoids eye contact, is unable to track the

conversation, and is unable to appropriately answer questions put to him. Robert

sometimes shouts out vulgarities or makes odd guttural noises when anxious,

particularly in group settings. Robert reports that he is sometimes asked to leave a

job after a single day. No one has been able to identify that Robert has ever had a

close friend. Robert lived with his parents until he was nearly fifty years old—only

becoming independent when his mother was placed in a nursing home. 

While living at home with both of his parents, Robert was able to maintain

sustained full-time employment with the assistance and support of his parents. When

his father died in 2004, Robert quit his job to assist his mother. In 2006, Robert’s

mother was placed in a nursing home, and he moved into an apartment. Since then,

Robert has been unable to hold a job, has suffered fromalcoholism, and was homeless

for a time. He now lives in an alcohol-related group home, even though he no longer

meets the requirements to reside there.

I recognize that some conflict exists in the record as to the nature and extent

of Robert’s social limitations. But, because the ALJ failed to provide “good reasons”

for rejecting Robert’s primary counselor’s opinion, I would reverse and remand to the

district court with instructions to remand to the ALJ for reconsideration of Robert’s

application after giving the counselor’s opinion proper weight. 

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The ALJ assigned “great weight” to the opinion of Dr. Lace, who conducted

a review of the record and testified as a consulting physician. The ALJ, however,

gave “no weight” to the opinion of Robert’s “primary counselor” in the intensive

outpatient program, Nancy Kaley. The ALJ found Kaley’s testimony about the

“intensity, persistence and limiting effects of [Robert’s] symptoms” to be “not

credible” because of the inconsistency with (1) Dr. Lace’s opinion, (2) “observations

by medical providers,” and (3) Robert’s activities of daily living (ADLs). The record

does not support the ALJ’s credibility assessment. 

In assessing whether a claimant is disabled for the purposes of Social Security

benefits eligibility, an ALJ must consider evidence provided by “other sources” like

Kaley. Lawson v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015). When an ALJ

discounts evidence based on a perceived lack of credibility, “[w]e ‘do not reweigh the

evidence presented to the ALJ’” but rather defer to the ALJ’s credibility

determinations “as long as those determinations are supported by good reasons and

substantial evidence.” Midgyett v. Comm’r, Soc. Sec. Admin., 727 F. App’x 228,

229 (8th Cir. 2018) (quoting Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015)). 

Kaley’s opinion is neither inconsistent with medical provider observations nor

Robert’s ADLs. 

Kaley testified that Robert does not know how to interact with or relate to

others and needs help to communicate with others. She testified that he gets “agitated

and nervous” when required to interact with others, “does not respond appropriately

to conversation,” and “does everything by himself.” She described “his pattern of

relating to others” to include angry facial expressions, avoidance of eye contact,

sudden profane outbursts, tics, grunts and roars, and an inability to understand humor.

Kaley identified these behaviors as the primary obstacle to Robert’s employment. 

She found notable “deficits in terms of fending for himself.” Kaley opined that

Robert “wouldn’t make it [living by himself]” because “he doesn’t know how to

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interact with people. He can’t hold a job, he can’t.” She testified that he would be

homeless if he did not reside in a supportive environment.

Consistent with Kaley’s testimony, Dr. Lace testified that Robert’s “anxiety

and Asperger’s symptoms” would allow only “very brief and very superficial and

very infrequent contact with supervisors and coworkers” and zero contact with the

public. “[H]e would work best on his own with . . . very limited contact with other

people except for supervisors.” Dr. Lace further testified that an adaptive skills test

measured Robert’s socialization to be “very low” and worse than a random sampling

of 100,000 people, his adaptive behavior to be unexpected for someone of average

intelligence, and his communication to be only better than one out of 10,000

randomly selected people.

“[T]he opinions of non-examining, consulting physicians” by themselves are

not “substantial evidence.” Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004). 

Instead, the Social Security Administration directs an ALJ to consider the same set

of factors for weighing a non-medical opinion like that of Kaley as a medical opinion

like that of Dr. Lace. See 20 C.F.R. § 404.1527(c), (f)(1). An ALJ is to consider: (1)

the type of relationship between the source and the claimant, (2) the length of

relationship, (3) the frequency of examination, (4) the nature and extent of the

relationship, (5) the opinion’s supportability with objective medical evidence, (6) the

opinion’s consistency with the record, (7) the source’s area of specialty, and (8)

“anyfactors . . . which tend to support or contradict the medical opinion.” Id. §

404.1527(c). An ALJ must consider “all” of these factors. See id. The

Administration acknowledges that factors such as seeing the claimant more often or

providing better supporting evidence or a better explanation may lead to the

conclusion that a non-medical opinion outweighs a medical opinion—and even an

opinion from a treating source. See id. § 404.1527(f)(1).

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The ALJ relied on two of these factors to weigh the opinions of Kaley and Dr.

Lace—consistencywith the record and their respective areas ofspeciality. Of course,

one opinion may be credited over another when supported by better or more thorough

evidence. See Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007). But, the

evidence cited in support of Dr. Lace’s opinion—his “expertise in mental health,

familiarity with the disability review process and his ability to review all of the

evidence”—is not better. Other factors such as the length, nature, and extent of

Robert’s relationship with Kaley are particularly relevant here—none of which was

addressed in the ALJ’s decision. Kaley worked with Robert as his primary counselor

for three and a half years. Her testimony reveals a high degree of familiarity with

Robert. She knows his daily habits, routines, and quirks. She knows how he interacts

with others because she routinely observes him in social settings like the common

area and group therapy sessions. She described his specific behavior and its

consequences in a variety of social settings.

The ALJ acknowledged that Dr. Lace could not provide “the kinds of

conclusions that you could reach only if you were a treating source” and that the

scope of Dr. Lace’s testimony was limited because he never examined or treated

Robert. Even so, the ALJ gave Kaley’s testimony no weight. The Administration

recognizesthe importance of opinionsfrom those most familiar with the claimant—a

reason controlling weight is generally given to medical opinions from treating

sources. They tend to be the ones “most able to provide a detailed, longitudinal

picture of [a claimant’s] medical impairment(s)” and to provide a “unique

perspective” of the record otherwise unavailable from “objective medical findings

alone orfromreports ofindividual examinations, such as consultative examinations.” 

20 C.F.R. § 404.1527(c)(2). Although Kaleymay not be a medicalsource, her unique

relationship with Robert provides a detailed, longitudinal picture of his daily social

functioning that is unavailable from the record evidence.

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The ALJ pointed to “[c]linical observations” as support for Robert’s ability to

“perform full-time work within the mental parameters of the [RFC].” But, those

observations are inconsistent. During a phone call with an administration employee,

Robert demonstrated an ability to understand, concentrate, speak coherently, and

answer questions. At an in-person appointment, however, he demonstrated poor

communication and eye contact, lack of social relationships, and a vocal tic while

meeting with a psychologist. Although the resolution of “conflicting evidence is

within the province of the ALJ,” Brachtel v. Apfel, 132 F.3d 417, 420 (8th Cir. 1997),

an ALJ may not discount opinions from “other sources” like Kaley just because the

evidence is mixed, see 20 C.F.R. § 404.1527(f)(1). 

A review of the record reveals that Kaley’s opinion is not inconsistent with the

observations as a whole. She testified that part of what impedes Robert’s full-time

employment is the volatility of his social reactions. She testified that his triggers are

hard to predict. She described instances when his behavior has “escalated” in

response to “certain personalit[ies],” new environments or people, or disruptions in

his routine. During times when he is agitated and nervous, Robert shouts more and

rolls his fingers more.

By focusing on observations of Robert’s affect, the ALJ discounted objective

medical evidence produced during the visits. For example, the ALJ noted Robert’s

“cooperative and polite” affect at a 2013 evaluation, but the evaluation opined that

Robert’s employment prospects were, at best, “marginal . . . in positions that do not

place much emphasis on social maturity and sustained interactions with others.”

With regard to Robert’s ADLs, we have “repeatedly observed that the ability

to do activities such aslight housework and visiting with friends provides little or no

support for the finding that a claimant can perform full-time competitive work.”

Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (internal quotation marks

omitted) (quoting Reed v. Barnhart, 399 F.3d 917, 923-24 (8th Cir. 2005)). And even

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if conflicting ADLs are sometimes a good reason to discount testimony, Robert’s

ADLs do not conflict with Kaley’s opinion. The ALJ indicated that, despite Robert’s

reported “problems with social interactions,” he takes baths, gets dressed, does

chores, reads magazines, prepares meals, rides his bike, goes to movies, goes

shopping, attends mandatory weekly meetings, and arranged a ride to a medical

appointment on at least one occasion. Kaley testified that these activities are

infrequent. Robert attended one movie by himself over the course of approximately

two years. That Robert occasionally engages in solitary activities—or even a

one-time conversation to arrange a ride—does not establish that he has the social

skills necessary to maintain full-time employment. In fact, there is substantial

evidence in the record to the contrary. 

Similar to the clinical observations, Robert’s ADLs also paint a mixed picture

of his abilities. For example, after Robert arranged the ride, he exhibited behavior at

the appointment that aligns with Kaley’s testimony. “He wasfrowning/scowling the

entire appointment” and “related in a rather odd manner.” He talked “to himself

under his breath, he had a grunting type vocal tic and he presented as if he was

agitated.” 

Finally, the ALJ’s conclusion that Kaley’s opinion was not substantiated by

“other evidence” is not supported by the record. Robert’s employment history clearly

shows his inability to maintain full-time work without support. He has held two

full-time jobs in his 62 years of life—one for eight years and one for seven—both

exclusively while he lived at home with his parents. Even though Robert voluntarily

quit a part-time janitorial job sometime shortly before the hearing, that job is hardly

evidence of Robert’s ability to maintain full-time employment in a competitive

environment. He worked “maybe twice a month, once every two weeks, and on a part

time basis making $8 an hour.” Without the support and assistance of his parents,

Robert has been unable to maintain a full-time job.

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In closing, I fear the majority’s decision reflects an increasing tendency to

“rubber stamp” an ALJ’s action in contravention of the “scrutinizing analysis” our

precedent requires. See Cline v. Colvin, 771 F.3d 1098, 1106 (8th Cir. 2014) (Bright,

J., dissenting); Cooper v. Sec’y of Health & Human Servs., 919 F.2d 1317, 1320 (8th

Cir. 1990). The ALJ’s rejection of Kaley’s testimony was error when viewed in light

of the record as a whole. I believe the ALJ failed to provide “good reasons” for

rejecting Kaley’s testimony, and that error is not harmless. I would reverse and

remand to the district court with instructionsto remand to the ALJ for reconsideration

of Robert’s claim after giving Kaley’s opinion proper weight.

______________________________

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